Information and Parties

Information No.: 07-401

Ontario Court of Justice

In the Matter of: an appeal under subsections 25(1)(c) and 25(2)(h) of the Occupational Health & Safety Act

Between:

Her Majesty the Queen

— and —

Rassaun Steel & Mfg. Co. Ltd.

Before: Justice J.C. George

Crown Motion for Time Extension on Cross-Appeal Heard on: April 25, 2012

Reasons for Judgment Released on: June 4, 2012

Counsel:

• S. Loosemore & K. Ballweg for the Prosecution
• R.D. Simmons for Rassaun Steel

Background

The Crown requests leave to file a Notice of Cross-Appeal, seeking a review of the decision of Justice of the Peace Aleong made on November 4, 2011.

Reasons for Judgment

GEORGE J.:

Facts and Procedural History

[1] Rassaun Steel & Manufacturing ("Rassaun") was charged with four violations of the Occupational Health & Safety Act ("OHSA"). The matter proceeded to trial on September 9, 2011, before the Ontario Court of Justice, and evidence was heard over the course of several days.

[2] The trial addressed only two of the counts charged, with the remaining having been withdrawn at some earlier point. Evidence was heard in relation to an allegation that Rassaun violated subsection 25(1)(c) of the OHSA (failing, as an employer, to ensure safety measures and procedures were carried out), and also an allegation under subsection 25(2)(h) (failing, as an employer, to take every reasonable precaution for protection of a worker). At the conclusion of the evidence, the presiding Justice of the Peace dismissed the former but made a finding of guilt and entered a conviction respecting the latter. Rassaun was sentenced December 16, 2011.

[3] By way of a Notice dated November 30, 2011, Rassaun appealed the conviction under subsection 25(2)(h) of the OHSA. Service upon the Crown, through their counsel, was made via facsimile transmission on December 1, 2011, although there is some indication in the Crown's materials that it may not have been received until December 2nd. In any event, this was completed within the allowable notice period.

[4] On December 23, 2011, the Crown filed its Motion seeking the extension of time noted herein. This Motion, and the Crown's Notice of Appeal of the same date, was served some 18 days beyond the limitation period, and 21 days after the Crown's receipt of Rassaun's Notice.

[5] There are two additional points that are important in order to provide the appropriate context for my decision. First, the trial which occurred in the fall of 2011 was the second trial of this matter. The first trial occurred in 2009, at which time the presiding Justice of the Peace dismissed all counts. That decision was successfully appealed by the Crown. Second, when this matter was before the Court for sentencing on December 16, 2011, specific inquiries were made by the Court as to whether or not appeals were being undertaken, with counsel for Rassaun confirming that his client had in fact appealed, and counsel for the Crown remaining silent.

Issue

[6] The issue to be determined in this case is whether or not the Court, in these circumstances, should grant leave for the Crown to file its Cross-Appeal.

Legal Framework

[7] The Crown submits, and I accept, that there is discretion to allow the late-filing of an appeal or cross-appeal, as the case may be. This authority derives from both the Provincial Offences Act, R.S.O. 1990 ("POA") and the Rules which govern appeals under the POA.

[8] In particular, section 85(1) of the POA states that:

Subject to this section, the court may extend any time fixed by this Act, by the regulations made under this Act or the rules of court for doing anything other than commencing or recommencing a proceeding, whether or not the time has expired.

[9] Additionally, rule 7 of the Rules of the Ontario Court (Provincial Division) in Appeals Under section 116 of the Provincial Offences Act, R.R.O. 1990, Reg. 196 (hereinafter "Rules") states that:

The time for a motion for leave to appeal and to appeal and for doing any other act in connection with an appeal for which a time is prescribed may be extended or abridged by a judge before or after the expiration of the time prescribed.

The Menear Test

[10] Several cases have addressed this issue. The preeminent authority is from the Ontario Court of Appeal in R. v. Menear, [2002] O.J. No. 244. The facts in Menear do not mirror the facts in this case and are in fact remarkably different in that it contemplated the request by an accused person to appeal his conviction (entered after guilty pleas), and after a significant period of delay. In any event, the principles set forth are clear and must guide me in determining whether or not to exercise my discretion. At paragraph 20, the Court indicates that:

There is no absolute rule to be applied in the exercise of the discretion whether or not to grant an extension of time. The court will, however, usually consider the following three factors:

(i) Whether the applicant has shown a bona fide intention to appeal within the appeal period

(ii) Whether the applicant has accounted for or explained the delay; and

(iii) Whether there is merit to the proposed appeal.

[11] It is clear that the Court is not to apply the criteria as set out in Menear in a way that amounts to a rigid test; R. v. Garland, [2008] O.J. No. 868, 2008 ONCA 134. Having said that, application of the criteria must be done in a meaningful way and close scrutiny should be undertaken of the failure to act in a timely manner.

Application of the Menear Factors

Factor 1: Bona Fide Intention to Appeal

[12] Notwithstanding the relatively brief delay period in this case, there is otherwise almost a complete failure to satisfy the criteria. First, the Crown took no steps within the appeal period to express a bona fide intention to appeal. Second, there is no reasonable explanation for the delay.

Factor 2: Explanation for Delay

[13] The first point is an obvious one, and is plainly apparent on the facts and I believe conceded by the Crown. The second point is not as obvious on the face of it, but in the result is an unavoidable conclusion. It was suggested by the Crown that the reason for not appealing was "simple", and that it was a deliberate decision, made because there was a finding of guilt on another count. The implication being that practically it made no sense, in these particular circumstances, to appeal. This is, however, inconsistent with the Crown's position that there were important issues raised within the trial decision, which required a review, most notably in relation to the Courts' interpretation of the terms "structure" and "project" as set out in the regulations to the OHSA. I cannot make sense of or reconcile these two explanations, given that there was never an indication, to anyone, that these were in fact concerns prior to December 23, 2011. This prong of the test makes sense only if it refers to the intention to appeal, not to the question of whether a party believed a Court was erroneous. The only logical conclusion then is that the Crown wishes now to appeal simply because Rassaun appealed, which is not a compelling reason, and still doesn't explain the approximately 18 day delay after learning of the appeal.

Factor 3: Merit of the Proposed Appeal

[14] Is there merit to the proposed appeal? This threshold will almost always be easily met, and is so here. The moving party simply needs to establish that the appeal "is not hopeless"; R. v. Junkert, 2009 ONCA 922, [2009] O.J. No. 2979 at para. 25 (C.A.). The Crown submits the Justice of the Peace at trial wrongly interpreted the words "structure" and "project" as they appear in Regulation 213/91 of the OHSA. Appeal Courts have consistently held that public welfare statutes, such as the OHSA are not to attract overly technical or narrow interpretations that would frustrate any public welfare objectives. While it is not my duty at this point to determine whether or not the Trial Court here did that, the guiding principle respecting statutory interpretation, establishes in my mind, that there would at least be some hope and some chance of success associated with the appeal.

Prejudice to the Respondent

[15] The factors set out in Menear are really an attempt to address the larger issue of whether it would be in the interests of justice, in any particular case, to grant leave. In this case, that analysis centers on the Menear factors, and also begs the question of whether or not there would be prejudice to Rassaun if leave is granted. The Crown advances the position that there would be no prejudice caused as, what is commonly known as the rule in Kineapple, would prevent a conviction on both of the counts charged. In their view, with that protection, there would be no danger in reviewing everything and that, even if the Crown were successful on appeal, it is not possible for Rassaun to be in a worse position than they are now.

[16] To say however, as the Crown suggests, that by virtue of the operation of R. v. Kineapple, [1974] S.C.J. No. 76, there is no prejudice to Rassaun, would be too simplistic. Rassaun commenced an appeal, within the allowable time, to one count only. They did not and are not seeking a review of the Trial Court's interpretation of the terms "structure" and "project". To review simply the count for which Rassaun was convicted requires no analysis of these terms or the more technical aspects of the other count and related regulation. If these definitions were of such great importance, and of such concern to the Crown, then it should have appealed within the allowable time. The Crown's assertion that broader public interest issues are prevalent in the definition and application of the relevant regulations, should have led to it responsibly, and in a timely way, making this decision, and without regard to Rassaun's post-trial decisions.

Conclusion

[17] Having balanced all of the relevant factors, I conclude that it would not be in the interests of justice to grant leave, and accordingly the Crown's Motion dated November 23, 2011, is dismissed.

Dated: June 4, 2012

Signed: Justice J.C. George